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Why military legal system seems stacked against sexual assault victims

For Myla Haider, working as a criminal investigator prosecuting rape cases for the US Army was difficult and often disheartening.

On one occasion, her unit's commander – skeptical of a reported rape victim's story – told her to advise the victim of the penalties for making a false statement and interrogate her "until I got the truth out of her."

On another occasion, a defendant who had failed a lie detector test was acquitted due to botched investigation, Ms. Haider says. The military judge ordered his belongings returned to him, including a bottle of liquor from the night of the alleged attack.

"The judge said, 'You can give this bottle back to the suspect so he can celebrate.' "

It points to a military legal system that, despite years of scrutiny and efforts to improve, remains skeptical of victims of sexual assault and reluctant to bring offenders to justice, critics say.

The most effective way to decrease rates of rape would be to increase rates of prosecution for perpetrators, said troops in a 2011 Air Force survey, the Pentagon's most comprehensive sexual-assault survey to date.

But data show that while 40 percent of civilian sexual-assault allegations are prosecuted, "this number is a staggeringly low 8 percent in the military," according to a statement from Reps. Niki Tsongas (D) of Massachusetts and Michael Turner (R) of Ohio.

There are signs of progress, with the number of prosecutions inching upward and an increasing awareness of the military's tendency to antagonize accusers while failing to scrutinize the serial offenders. But many involved say there is a long way to go.

A Pentagon study released in April shows the nature of the challenge facing the military. It found that nearly 3,200 people reported being sexually assaulted in 2011. Of these cases, some 2,400 could be prosecuted because they were "unrestricted" – meaning the victims came forward and agreed to proceed with a court case. These cases resulted in 191 convictions. Punishments for the convicts included jail time (78 percent), a reduction in rank (82 percent), fines (68 percent), and discharges or dismissal (64 percent).

It is a history of prosecution that has not improved considerably since the issue of sexual assault came to public consciousness during the infamous Tailhook scandal in 1991, critics charge. At a Las Vegas convention of the Tailhook Association, which supports naval aviation, hundreds of sailors, many of whom had been drinking alcohol, lined hotel hallways and groped and assaulted women in what became known as the "gauntlet."

In all, 87 women came forward saying that they had been assaulted.

Ultimately, efforts to prosecute offenders in the Tailhook scandal were deemed a half-hearted failure by the Pentagon's inspector general at the time. According to an internal report, Rear Adm. Duvall Williams Jr. – who spearheaded the investigation – told the assistant secretary of the Navy that "a lot of the female Navy pilots are go-go dancers, topless dancers, or hookers."

He also observed that a female officer who had come forward with a complaint had used profanity in describing her assault. "Any women who would use the F-word on a regular basis would welcome this type of activity," he reportedly said.

Today, failure to prosecute some prominent sexual-assault cases is a key reason many victims never come forward to report the crime.

The Pentagon's annual report on sexual assault estimated that only 14 percent of the 19,000 service members estimated to have experienced assault during the course of one year actually came forward.

According to one survey, one quarter said they did not report the crime because they "did not trust the reporting process."

Defense Secretary Leon Panetta has acknowledged the systemic problems. "The most important thing we can do is prosecute the offenders," he said. "If we can do that, then we can begin to deal with this issue."

Respondents to the 2011 Air Force survey agreed. "Air Force personnel are trained ad nauseam on sexual assault, prevention, and response," read one response. "The perpetrators of sexual assault, however, will continue their behavior unless they fear significant consequences."

Noted another, "Harsh consequences for offenders is the best way to act as a preventative measure."

Part of that includes increasing the penalties for sexual assault, which are beginning to inch up. The number of courts-martial for sexual assault cases has also increased, from 410 in 2009 to 489 in 2011.

A witch hunt?

Yet some within the military fear the pressure to increase prosecutions of sexual assault could result in a witch hunt mentality.

"What is the 'right' prosecution rate? 20 percent? 40 percent?" says James Russell III, associate director of the Air Force's Military Justice Division.

Chief of Naval Operations Adm. Jonathan Greenert also worried about pressure from Congress that would "take the reconciliation – litigation if you will – necessary for sexual assault out of our hands."

But he acknowledged that the low prosecution rates were the result of "some 'not the best' investigations.' "

To that end, in April Mr. Panetta announced a new special victims unit that will help better train military lawyers.

"We hope that it will help the process of prosecuting be stronger," says a congressional staffer. "These are places where the Pentagon prosecution hasn't been willing to go in the past."

Particularly problematic in both investigations and prosecutions has been the military's tendency to emphasize the behavior of the victim, rather than the behavior of the perpetrator, notes Russell Strand, chief of the family advocacy law enforcement training division at the US military police school at Fort Leonard Wood, Mo. "We don't look at a burglary victim or robbery and say, 'Well, they gave away money before,' or 'They went to the ATM machine all dressed up.' "

Former investigator Haider found the same. "There were always people asking what [the victim] was doing there, whether she had a boyfriend or not" – scrutiny, she says, not given to the alleged perpetrators.

As prosecutors have begun to take the emphasis off the victims, they have found that many of the sexual assaults in the US military are perpetrated by experienced predators who may engage in as many as 300 sexual assaults during their lifetime, Mr. Strand says.

The US military is an ideal place for sexual predators to prey on victims, with a strict hierarchy that makes it what some have described as a "target rich" environment.

"Most sex offenders aren't the obnoxious people slapping people's behinds and making sexist comments," Strand adds. Instead, they often systematically "groom" their victims, gaining their confidence. They encourage them to take part in activities that might get them in trouble as well if commanders learned of them – such as underage drinking.

Well-meaning victim advocates would often advise the victim against reporting the crime to avoid being prosecuted for such offenses.

Often, it was a valid concern, says Haider. Though many investigators ignored alcohol violations in order to encourage the victims to discuss the crime or witnesses to come forward, others do not. "If the victim had any level of regulatory violation at the time the rape occurred, that's what they're focusing on," Haider says.

The perpetrators are aware of this.

"We know that a lot of the people who perpetrate sexual assaults have done it before," says retired Lt. Col. Nate Galbreath, former deputy director of the Pentagon's Sexual Assault Prevention and Response Office and now an adviser to the organization. "These people are very practiced at what they do, and they do it well."

These are behaviors that US military prosecutors are learning to focus on during trials. "Basically what we're doing is examining the crime, as opposed to the victims," Strand says.

Understanding victims

Key to this is a new understanding of how victims of sexual assault often respond. In the past, when investigators would uncover inconsistencies in the victims' testimonies, they would immediately discredit them. "We thought inconsistencies equals a lie, which is really not true," Strand says.

"We'd ask questions of the victims like, 'What kind of socks was the perpetrator wearing? What time was it? Which hand did he use to touch you?' " These were questions, Strand adds, that in their traumatized state, victims were not always prepared to answer.

"Now, if I have a report without some inconsistent statements I tend to get a little concerned," he says.

At the same time, the US military is changing its mind-set. In the past, officers might have asked if a victim had failed to use the "buddy system" when walking back at night.

"The issue should not be 'Were you with your buddy?' ... The only person responsible for the assault is the perpetrator."

A wide-ranging sexual-assault scandal at Lackland Air Force Base in Texas, uncovered earlier this year, points to the problem of sexual predators within the force and the challenges of prosecuting them.

Pentagon investigators say that more than three dozen female trainees may have been victimized. To date, six instructors at the basic-training course for the Air Force have been charged with offenses ranging from rape to adultery.

In the prosecutions, though, the Air Force has had some notable setbacks. Staff Sgt. Peter Vega-Maldonado struck a plea deal in June after he admitted to having sex with a female trainee. He received 90 days' confinement after agreeing to testify against his fellow trainers, for which he received immunity.

It was only then that he admitted to having sex with a total of 10 trainees, a source of grave embarrassment for Air Force officials.

In July, Staff Sgt. Luis Walker was sentenced to 20 years in prison after being convicted of raping a female recruit and sexually assaulting several others.

In investigating the topic of military sexual assault for his documentary, "The Invisible War," director Kirby Dick found repeated cases of victims afraid to report the crime for fear of what might happen to them – the potential destruction of their careers, the damage to their families.

When they did, he found that "it wasn't only the assault which was so devastating – it was the second-stage betrayal when the military didn't investigate the crime properly and was much more aggressive towards the victim than it was towards the perpetrator."

Throughout his work, Mr. Dick says, he heard a "standard refrain" from defense officials. "It was, 'The civilian world certainly has a problem with sexual assault, and the military is only a reflection of society – so don't blame us, blame society.' "

But the military is also in a unique position to address the crime. "It has more control over its population than the civilian world – it can educate and teach values of respect for women."

He points to the military's integration of African-Americans, and the role that played in decreasing racism in the country.

"I think the military deserves a fair amount of credit for that," Dick says. "I think the military could do the same thing with sexual assault. Right now it's a very severe problem in the military, but it has the opportunity to address this problem that will not only benefit the military and make it a stronger fighting force, but over time it can increase respect for women throughout society."